Saturday, March 31, 2018

County Road 595 Appeal concludes

This wetland in the proposed CR 595 corridor is one of many sensitive areas that would be impacted if the proposed road were built. (Keweenaw Now file photo © and courtesy Jessica Koski)

By Yellow Dog Watershed Preserve
Posted on their Web site March 23, 2018*
Reprinted here with permission.


MARQUETTE -- The battle between the U.S. Environmental Protection Agency and the Marquette County Road Commission concluded on March 20th in the U.S. 6th Circuit Court over County Road 595, the proposed road leading from Eagle Mine to Humboldt Mill. For those who need a refresher, the permit for CR 595 was submitted to the MDEQ (Michigan Department of Environmental Quality) in 2012 and as part of the review process, the U.S. EPA issued objections to the project based on the Clean Water Act. Long story short, the MDEQ did not issue the permit and the process then transferred to the U.S. Army Corps of Engineers.

The Road Commission then decided to file suit against the U.S. EPA with the crux of the lawsuit over the their perception that the EPA’s objections were "arbitrary and capricious" and that they "exceeded their authority" in the process. After review in District court, it was determined that the court cannot even decide on the case because, according to the Administrative Procedures Act, you cannot bring suit against a decision unless it is considered a "final agency decision." The case was dismissed.

The Road Commission then teamed up with a lobbying group called Pacific Legal Fund, who paint themselves as the champions of the little guy against the Goliath of government. They decided to appeal the decision. Oral argument transpired in Circuit court, from which you can read transcripts thanks to journalist Louis Galdieri.** Ultimately Circuit court agreed and affirmed the District court’s decision. The EPA’s objections were not final agency decisions and therefore not reviewable because the permitting process could have continued, but it was abandoned by the Road Commission.

It remains to be seen what the next step is for the Road Commission. In an interview, Road Commission manager Jim Iwanicki said that they have options including asking the court to look at specific things again, proceeding with the case to the U.S. Supreme Court, or dropping the case. It is also a possibility that the permitting process could continue under the authority of the U.S. Army Corps of Engineers. While the road isn’t going to be built anytime soon, the future is still unclear. The Yellow Dog Watershed Preserve still strongly opposes building a mine road through this remote and wild area. Enough damage has already occurred from mining related activities and we don’t need anymore!

* Click here for this and other articles by the Yellow Dog Watershed Preserve.

** Click here to read Louis Galdieri's series of articles on the CR 595 controversy.

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